TMA Testifies SB 177: TMB Process Improvements

Testimony: SB 177 by Sen. Joan Huffman (R-Houston)

By: Les Secrest, MD, Member of TMA's Council on Legislation

Madam Chair, members of the committee, I am Dr. Les Secrest. I am a psychiatrist from Dallas and I am speaking on behalf of the Texas Medical Association and our more than 45,000 physician, resident and medical student members.

We strongly support Senator Huffman’s bill and believe it addresses several useful process improvements for the Texas Medical Board and strengthens both the effectiveness of the Board as the state’s licensing agency and the fairness with which it deals with both physicians and the public.

Among the improvements we support in this bill are provisions which:

Requires that complaints be filed within seven years of occurrence, except in the case of minors. This mirrors medical record retention policies and is clearly a fairness issue.

Ban the truly “anonymous” complaint except a complaint brought by an insurance company or its agent. No licensing board should accept a truly anonymous complaint and a business complaint that could be viewed as harassing should be disclosed. But, we believe there is good reason to maintain confidentiality for most complaints, at least through the initial informal process.

Increases the statutorily set time for a physician to respond to notice of complaint from 30 to 45 days. Realistically, it may take up to two weeks for the Board to process a complaint, determine if it has jurisdiction and whether the complaint rises to a level of concern warranting a notice to a physician. The original intent was to give licensees 30 days to respond and this change from 30 to 45 days would accommodate the Board’s processes and a reasonable period for response.

Allow the taping of an informal settlement conference at the request, and I believe expense, of the physician. Again, this is an issue of both process and fairness.

Require that the Board be bound by the decision of an Administrative Law Judge – in a proceeding supervised by the State Office of Administrative Hearings. At the conclusion of the initial investigative process, the Board and the licensee hold an Informal Settlement Conference with the physician in which the nature of the complaint and opinions of experts are considered. The Board may offer and agreement but the physician may wish to proceed – as is the physician’s right – to a formal proceeding with an Administrative Law Judge. This becomes a formal proceeding governed by rules of evidence – including the disclosure of complainants. However, at this time, the Board is not bound by the Judge’s decision as the trier of law and fact. Again, we believe it is fair that both the Board and the physician be bound by this judicial determination. And this provision retains to the Board the determination of fine or sanction. But, either party could still challenge the outcome in state district court. Frankly, it seems unfair that in the event the Administrative Law Judge rule in favor of a physician, the Board could ignore such a ruling and proceed as if it never existed.Again, we believe that this provision is a matter of both fairness and due process. And I believe the Board supports this provision.

Amends current statutes regarding temporary permits for physicians seeking faculty positions to disqualify a physician who held a medical license that was surrendered or cancelled for cause or whose license is under investigation by another state or country.

Senator Nelson, members of the committee, I thank you for the opportunity to speak in support of Senator Huffman’s bill and will attempt to answer questions if that is your wish.